Emilie Cooper - Legal Light

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LEGAL Light t EMILIE COOPER

FROM PRIEST LEGAL

CONTESTING A WILL NOT ALL IT’S CRACKED UP TO BE.

Additionally, with approximately 45% of fi rst marriages ending in divorce, the next stage can also result in the blending of families. Blended families are becoming increasingly mainstream but the question of who should receive the benefi t of a deceased’s bounty remains a vexatious one.

“I don’t want anyone to be able to contest my will” is an instruction we receive quite often when a client gives us instructions for their will.

Only certain people can contest your will, not just “anyone”. They have to fall within the category of eligible persons. In NSW, they are: • Your spouse or partner at the date of your death • Your child • Your former spouse • A person who was wholly or partly dependent on you at a particular time in your life, and is a grandchild or a member of your household • A person who is living in a close personal relationship with you at the time that you pass away, eg you may be living with someone who provides you with personal care and domestic rapport but they receive no payment for this and they are not volunteering for a charity.

The last two categories are quite wide and can include a parent, sibling or stepchild but they need to prove that they were dependent on you and that they were a member of your household.

Even if the persons that you are concerned about may make a claim, there are other hurdles that they have to overcome such as fi nancial need and disentitling conduct.

In Larkin v Leech-Larkin [2017] NSWSC 1418, supporting Stott v Cook (1960) 33 ALJR 447 at 453-454; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at 284-285 [127], Parker J said at 79:

It has frequently been pointed out that the Court is rarely in as good a position as the testator to assess and weigh the factors which go to determining what provision is “proper” among various persons who might have a claim to the testator’s bounty and that, accordingly, unless it appears that the testator has misused his or her advantage, or the circumstances existing at the time of the hearing were not reasonably foreseeable for the testator, the Court should be reluctant to depart from an apparently reasonable judgment on the part of the testator.

In this case, the deceased had given the whole of her estate to one of her four adult sons, Lucien. One of her other sons, Julian, contested the terms of the will seeking provision from the estate. The judge found that, in the circumstances, the deceased had a “justifi able basis” to give the whole of her estate to Lucien and rejected Julian’s claim.

His honour concluded at 95 that “the law imposes no obligation on parents, during their lifetimes, to provide advancement for their children or to safeguard assets so that such advancement can be provided by will. Nor can the power to make a family provision order under the Succession Act be exercised for the purpose of salving wounded feelings or indignation produced by the deceased’s behaviour during his or her lifetime.”

Julian’s claim was rejected and he would have had to pay his own legal costs of the claim and potentially the legal costs of the estate.

In the recent case of Cooper v Atkin [2020] NSWSC 820, Justice Hallen rejected a claim by a stepchild of the Deceased who had spent very limited time in the household of the Deceased and alleged that she would have spent more time with him were it not for the Deceased’s behaviour. His Honour described the family provision proceedings taken by the stepchild at 1 as “ruinous and recriminatory” and the litigation at 237 as “self-defeating”.

If you are in a blended family, the issues that can arise with respect to who you should leave your estate to should be dealt with through estate planning mechanisms long before you consider “shuffl ing off this mortal coil”. Simple acts such as the purchase of a property as joint tenants rather than as tenants in common, for example, can make a difference with respect to the capacity for potential claimants to make a claim.

At Priest Legal, we have a skilled and diverse team of lawyers to advise you in relation to your estate planning matters, your wills and the administration of estates.

e judge found that, in the circumstances, the deceased had a “justifi able basis” to give the whole of her estate to Lucien and rejected Julian’s claim.

L to R: Greg Freeman, Linda Elbourne, Ethan Francis, Rachel Sheppard

Infrastructure has become quite the election issue. Can you please outline the position of The Sheppard Team?

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Authorised by Rachel Sheppard, 27 Kendall Crescent, Bonny Hills NSW 2445